National Consumer Disputes Redressal
M/S. Suraj Tiles P. Ltd. vs M/S. Grain Processing Industries India ... on 29 July, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 247 OF 1999 1. M/S. SURAJ TILES P. LTD. OFFICE AT GARRA BALAGHAT M.P. NA ...........Complainant(s) Versus 1. M/S. GRAIN PROCESSING INDUSTRIES INDIA P. LTD. OFFICE AT 29 STRAND ROAD 29 STRAND ROAD CALCUTTA 2. Madhya Pradesh Urja Vikas Nigam Ltd. M.P. Govt. Undertaking, B-Block, G.T.B. Complex, T.T. Nagar Bhopal M.P. ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON'BLE DR. S.M. KANTIKAR, MEMBER
For the Complainant : Ms. Richa Rajesh, Advocate For the Opp.Party : Mr. S.S. Ray &
Ms. Rakhi Ray, Advocates
Dated : 29 Jul 2015 ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER
1.This order shall decide the objections raised by the judgment debtor during the Execution Proceedings. Our learned predecessor Bench passed the decree in favour of M/s Suraj Tiles Pvt. Ltd. -Complainant and against M/s Grain Processing Industries (India) Pvt. Ltd. -OP-1 but the case against Madhya Pradesh Urja Vikas Nigam Limited-OP-2 was dismissed on 10.02.2010. The operative para of the decree runs as follows:-
"For the foregoing discussion, complaint is partly allowed with direction to opposite party no. 1 to deposit amount of Rs.15 lakhs along with interest @ 9% p.a. from the date of filing of complaint and costs of Rs.25,000/- with this Commission within four weeks from today. On deposit of this amount, the opposite party no. 1 will be entitled to dismantle and remove the gasifier plant at their expenses within four weeks. Deposited amount will be released in favour of the complainant by the Registry on filing of affidavit that the gasifier plant has been removed by opposite party no. 1. Complaint against opposite party no. 2 against whom no relief was claimed, is dismissed".
2. Aggrieved by that order Civil Appeal No. 5991 of 2010 was filed before the Supreme Court. The Hon'ble Supreme Court vide its order dated 26.07.2010, dismissed the appeal.
3. The Judgment Debtor has set up the following objections in its application EA/21/2010 dated 19.04.2010 U/s 47 of CPC regarding non-executability of the order dated 10.02.2010. The complainant purchased the gasifier plant from the OP for generation of electricity and thermal heat for its factory and sale of electricity to other consumers, which excludes the purchaser/complainant from the definition of Consumer and consequently, from the purview of Consumer Protection Act 1986. It is further averred that the complainant has suppressed the fact that he had purchased gasifier plant from the J.D. for commercial purpose and their factory and re-sale of electricity to outside consumers. Consequently, the complainant has practiced fraud on Court and as such the order dated 10.02.2014 is non-est in the eyes of Law and the said order be treated as nulty. An application u/s 9 of West Bengal Act 1913, Rule 80 which provides for payment of amount due under non executability certificate may be made by instalments, if the certificate Office so directs, was also moved. Further the learned Certificate Officer asked to set aside the order dated 10.02.2010 passed by the Commission.
4. On 20.11.2011, the Certificate Officer called both the parties to have an understanding on the issue. The learned Certificate Officer directed for payment of Rs.6,00,000/- being 20% of 30 lakhs within 7 days and the balance amount in rest 3 instalments within one year. No objection was raised by the Advocate and Representatives of the complainant to the mode of instalments. Copy of the order of the learned Certificate Officer dated 15.11.2011 and 22.11.2011 were placed on the record. First instalment of Rs.6,00,000/- was made by depositing Bank draft of Rs.5,00,000/- with this Commission and Rs.1,00,000/- which has already been paid on 02.11.2011 in terms of the order dated 22.11.2011 of the Learned Certificate Officer. The above said application was moved with the following prayers:-
"In the aforesaid circumstances, your petitioner humbly prays Your Lordships for an order Directing the Ld Certificate Officer, South 24 Pargonas, Alipore, New Administrative building, 1st Floor, Kolkata, West Bengal to hear the application under section 9 of the said Act of 1913 denying the liability of certificate amount due non executability of the order dt. 10.2.10 passed by the Hon'ble National Commission filed by your petitioner expeditiously Directing the registry of the Hon'ble National Commission to send Rs.5 lakhs to the said Ld. Certificate Officer, South 24 Pargonas, Alipore, New Administrative Building, 1st Floor, Kolkata, West Bengal towards the protanto satisfaction of second instalment which has to be paid within 22.3.2012, And pass such other orders and directions as the Hon'ble National Commission shall deem fit and proper".
5. Counsel for the Judgment Debtor has moved another application No. IA/1/2012 dated 30.11.2012 in this respect, on the same ground. In this application, it is explained that the complainant bought and purchased the said gasifier for reduction of cost of generation of electricity through their diesel- Generating Set of 200KW for commercial use in their factory in production of Fine Clay products and heating of the said product in their KLINS of the factory for the sale products in the market and also for re-sale of low cost electricity so produced to third party through Grid of MP Electricity Board upon payment of WHEELING CHARGE of 2%.
6. It is further averred that the complainant in terms of incentive scheme floated by the State of Madhya Pradesh on the background of acute shortage of electric power for using of alternative and non-conventional energy sources for generation of electricity through the diesel, generating set for commercial use in their factory and re-sale in the market. The complainant is a manufacturer of Mangalore roofing tiles etc. i.e. Fine Clay Products, which is evident from letters dated 11.04.1998 sent by Advocate of Judgment Holder Mr. V.D. Deoras and the letters written by Director of Judgement Holder dated 27.03.1997, wherein he wrote that the gasifier was commissioned for commercial use of 20.03.1997 and further letters dated 26.09.1997, 14.12.1999, 15.11.1997, 05.03.1997 and order dated 08.12.1995 etc.
7. The decree holder has deliberately suppressed the material facts and practiced fraud upon the National Commission. Consequently, the present petition was moved with the prayer that it be ordered that the above said decree shall not be executed at all. The OP/decree holder has contested this case.
8. We have heard the counsel for the parties. Counsel for the Complainant has reiterated his arguments and invited our attention to the documents referred above. He has cited a number of authorities in support of his case, viz. Union of India and Ors. Vs. Ramesh Gandhi (2012) 1 Supreme Court Cases 476 while placing reliance on the case of S.P. Chengalvaraya Naidu V. Jaganath (1994)1SCC1, it was held that the Supreme Court on more than one occasion held that Fraud avoids everything including judicial act, in that case reliance was also placed in the case of A.V. Papayya Sastry V. Govt. of A.P. (2007) 4 SCC 211, in para Nos. 25 & 26. He also cited Sarup Singh V. Uniion of India and Another (2011) 11SCC 198. Towards Para Nos. 20, 21 , 22 & 24, A.V. Papayya Sastry V. Govt. of A.P. (2007) 4 SCC 211 (supra), Ram Preeti Yadav V/s U.P. Board of High School and Intermediate Education & Ors. (2003) 8 SCC 311. He has invited our attention towards para Nos. 13 & 14 of the said judgement. He has also referred to Sarwan Kumar and Another V/s Madan Lal Aggarwal (2003) 4 SCC 147, Gowrishanker and Anr. V/s Joshi Amba Shankar Family Trust and Ors. (1996) 3 SCC 310, S.P. Chengalvaraya Naidu Vs. Jagannath & Ors. (1994) 1 SCC 1 and Narsingh V/s Rao Nihalkaran AIR 1962 M.P. 318.
9. Counsel for the Judgment Debtor has cited for fetched authorities, which hardly dovetail with the facts of this case. The facts of this case are peculiar and unique. Para No. 2 of the complaint runs as follows:-
"2. That the complainant is a consumer and comes within the provisions of section 2 (d) of the act as the complainant has bought goods for a consideration already paid and is not using the said goods for re-sale or for any commercial purpose".
The reply of this para runs as follows:-
"2. That the content of para 2 of the complaint is admitted".
It does not lie at the mouth of the judgment debtor to raise this objection time and again. The judgment debtor is estopped from raising this point. The but and ben position raised by the judgment debtor goes to weaken its case. The matter went upto the Hon'ble Supreme Court and the OP lost the battle therein. He is an unsuccessful litigant.
10. Again, there is not even an iota of evidence which may go to show that the complainant bought the above said gasifier for re-sale. Para No. 6 (a) of the objections is reproduced here as follows:-
the alleged Judgment Holder filed the alleged Complaint [S/2(1)(c )] u/s 21 of the said Act without being a Complainant [U/s 2(a)(b)(i)] and consequently without being a Consumer within the meaning of Consumer S/2(1)(d)(i) & (ii) of the said Act, inasmuch as the Judgment-holder as Complainant/ Consumer bought the said Gasifier for reduction of cost of generation of electricity through their Diesel-Generating Set of 200 KW for Commercial Use in their factory in production of Fine Clay Products and heating of the said Product in their KILNS of the factory for sale of the said Products in the Market and also for re-sale of the Low-cost-electricity so produced to Third Party through Grid of MP Electricity Board upon payment of WHEELING CHARGE OF 2%".
11. There is no re-sale of gasifier. The Gasifier was used in place of diesel. The decree holder was to sell low cost electricity. Gasifier was one of the ingredients for making the electricity. By no means, it can be said to be a case of re-sale.
12. This must be borne in mind that the amendment in the Act w.e.f. 15.03.2003 has brought about the fundamental changes in the definition of Consumer. Unfortunately, this case pertains prior to the amendment. The position would have been different, if the case pertained to the subsequent period from 15.03.2003.
13. It is notable that decree was passed as back as on 10.02.2010 and the Hon'ble Supreme Court finally disposed of the case on 26.07.2010. The Judgment Debtor has adopted Fabian/dilatory policy to harass the Decree Holder no end. In Ravinder Kaur Vs. Ashok Kumar, AIR 2004 SC 904, The Hon'ble Supreme Court was pleased to hold:-
"Courts of law should be careful enough to see through such diabolical plans of the judgment debtor to deny the decree holders, the fruits of the decree obtained by them. These type of errors on the part of the judicial forum only encourage frivolous and cantankerous litigations causing law's delay and bringing bad name to the judicial system."
14. Counsel for the complainant has also cited an authority in support of his case in this respect. In "Union of India Vs. Major S.P. Sharma & Ors." (2014) 6 SCC 351, Hon'ble Supreme Court was pleased to hold:-
"A decision rendered by a competent court cannot be challenged in collateral proceedings for the reason that if it is permitted to do so there would be confusion and chaos and the finality of proceedings would cease to have any meaning. Thus, the principle of finality of litigation is based on a sound firm principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law inasmuch as there will be no end to litigation. The doctrine of res- judicata has been evolved to prevent such an anarchy. In a country governed by the rule of law, finality of judgment is absolutely imperative and great sanctity is attached to the finality of the judgment and it is not permissible for the parties to reopen the concluded judgments of the court as it would not only tantamount to merely an abuse of the process of the court but would have far-reaching adverse effect on the administration of justice. It would also nullify the doctrine of stare decisis, a well-established valuable principle of precedent which cannot be departed from unless there are compelling circumstances to do so. The judgments of the court and particularly the Apex Court of a country cannot and should not be unsettled lightly."
15. Consequently, we dismiss the objection petitions subject to payment of Rs.1,00,000/- as further costs, to be paid to the decree holder within a period of 30 days from the receipt of this order, otherwise it will carry interest @ 12% till realization. The order of the Commission dated 10.02.2010 be complied with immediately, within a period of 30 days from the receipt of this order otherwise the Judgment Debtor will be liable to pay penalty in the sum of Rs.500/- per day till the compliance of the original order dated 10.02.2010.
......................J J.M. MALIK PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER